Third party harassment

When it was originally implemented, the EA 10 included specific provisions (now repealed) designed to provide a remedy for employees who were targeted with harassment by third parties, such as suppliers, customers or agency workers. Despite campaigning by unions, these laws were repealed on 1 October 2013.

Section 40 provided a claim against the employer for acts of harassment by a third party on at least three occasions, where the employer knew of the harassment and failed to take reasonably practicable steps to prevent it.

Even though section 40 has been repealed, members may still be able to bring a claim based on third party harassment in some circumstances, by arguing, for example:

• that the unwanted conduct “relates to” their protected characteristic, and that their employer’s failure to take steps to protect them is a breach of the general anti-harassment duty under section 26 of EA 10;

• that the employer’s failure to protect the member against harassment by the third party is a detriment in itself, supporting a claim for direct discrimination;

• that the employer is in breach of the implied duty of mutual trust and confidence; or

• that the employer has breached its health and safety duties.